March 30, 2012

Liptak refers to the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty:

“There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

"Liberty" is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn't mean they're going to love everything you slap a "liberty" label on!

Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Obviously, that's exactly not the kind of liberty the SG was talking about.

But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor [Helen J.] Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner."...

As Ilya Shapiro wrote in The Harvard Journal of Law and Public Policy in 2010, “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.”...

In 1992, joining with Justices Sandra Day O’Connor and David H. Souter to uphold the core of the constitutional right to abortion identified in Roe v. Wade, Justice Kennedy wrote by way of explanation that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

Interesting and important quotes, but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.

As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.

Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.

88 comments:

Under Obamacare, unelected gov't bureaucrats are in my home, my doctors office, my church, my bedroom, and are standing between me and my insurance provider, telling me what I can't do and ordering me to purchase items I don't want.

Under Bush 43, the left was paranoid about gov't spying (seems it is okay to spy under Obama though). But this is a real gov't control issue.

George Bush was never looking to see what library books I checked out (sorry paranoid Beloit library workers), but Obama is in my church, telling me what I have to do there.

but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.

The NYTs is twisting itself into pretzels to have some affect on the outcome of the decision. They really didn't see this coming.

Which is why I don't use them as brokers of information. Their only redeeming quality is that they show us what the enemy is thinking.

What of the intrusive requirements of an ultrasound before an abortion, is is right that government get inbetween a woman and her doctor? Want government out of your health care choices? Okay, fine, but you can't have it both ways.

Allie only a prog could compare killing a kid but having the mother look at whom she is going to kill to being forced to buy an insurance policy. Would you prefer to have woman mandated to carry a pregnancy to term?

Cubanbob, no of course not. It's not your or the governments business forcing a woman to view an ultrasound before a legal medical procedure. This is an example of government getting inbetween a person and their doctor in a medical decision.

It couldn't get any clearer. As I said, you can't have it both ways. Slapping the liberty label on health care decisions that are only morally acceptable to some is not liberty.

The Gray Lady is already in the river in Egypt, trying to convince the hoity and the toity that the Administration's argument weren't that bad, they were just so much smarter than the Supremes, nobody could see it.

"What of the intrusive requirements of an ultrasound before an abortion, is is right that government get inbetween a woman and her doctor? Want government out of your health care choices?"

If that's addressed to me, you should know that I have not blogged any approval of those laws.

But when people undergo medical procedures, informed consent is part of choice. You need to know what is going to be done to you. Arguably, a free ultrasound could be considered a valid regulation like that, but if what it really is is a way to make it harder for you to do what you've chosen, then it's a rights violation.

"What of the intrusive requirements of an ultrasound before an abortion, is is right that government get inbetween a woman and her doctor?"

I think abortion is a special case, since it involves another entity that deserves more consideration than a tumor would. You know this is why such a thing is proposed. It would never be proposed in consideration before destroying any other growth in the woman's body.

It simply involves more than just a doctor and a single patient.

It's not even comparable, but would you think it alright for a married man to get a vasectomy without telling his wife? That only involves two people. Conveniently, a fetus doesn't even have to be lied to.

"Justice Kennedy's jurisprudence is a constant struggle to find the right balance between liberty and responsibility."

Yeah, right. Responsibility - since this is the Harvard Journal of Law and Public Policy - equals government largess, so-called compassion. It follows that responsibility assaults liberty by way of confiscatory taxation. There actually is a legitimate judicial responsibility: the responsibility to defend liberty from the anointeds' relentless attack.

If liberty is being free of disease, ultimately the discussion should be on what can be done to encourage healthy living, not how to mandate health insurance.

I wonder if anyone has actually figured out what portion of the health care costs in this country are the result of preventable conditions? I bet it's very high but I don't know for sure. From the CDC: Each year in the United States, chronic disease such as heart disease, stroke, cancer, and diabetes cause 7 in 10 deaths and account for about 75% of the $2 trillion spent on medical care9

If liberty means being mandated to act responsibly then I would prefer the government try forcing people to eat better and exercise and practice some kind of stress reduction techniques. Quit smoking and drinking too much. If people choose to do high risk activities and their health is affected they can be mandated to pay their own way.

Although I wrote: "It would never be proposed in consideration before destroying any other growth in the woman's body.", the fact is that you would never be able to get even a tumor removed without an ultra sound or even more invasive procedure.

Back on topic, this is an example of Podhoretz and others have been commenting on. Conservatives know how to "talk liberal" - make arguments that might be appealing to liberals - but liberals are in such a cocoon that they don't know how to talk conservative. The SG has such a simpleminded view of conservatives that he honestly thought that putting the word "liberty" in a sentence would make it persuasive as opposed to its most likely effect, which was to cause Kennedy to be annoyed that something important to him, liberty, was being grossly distorted and caricatured.

If liberals actually want to persuade conservatives, they actually have to start taking them seriously and understanding their arguments, as opposed to what they do now, which is simply look at their conclusions and decide they must come from some animosity such as racism, homophobia or misogyny.

Also, many people are having their liberty reduced by the coercive power of the state (taxation), in order to give the blessings of liberty to some people with diabetes or others they deem more worthy.

"If you believe that government MUST stay out of personal medical decisions, you simply can't pick and choose medical decisions you have a moral objection to.

I don't believe a human is created with full rights at conception, but like I said abortion is a very special case where more than just the woman is involved. There is the fetus, and the father, both of who are stakeholders without a voice. It unfortunate that we gestate in a woman body, and that shouldn't make us blind to such serious considerations for the others involved.

Regardless, as I said, any removal of tissue would require such a procedure first. Why no objection to those which are required by insurance companies. It can't just be the concern for freedom from government.

I think it's the law that I can even be forced to give tissue samples against my will to incriminate myself.

liberals are in such a cocoon that they don't know how to talk conservative . . . If liberals actually want to persuade conservatives__________

Let's not be in a cocoon ourselves and continue to suffer under the delusion that liberals actually care about persuading conservatives. They do not. Liberals are not about persuading, they are about imposing; they are not about reason, they are about POWER.

Reasoning, persuasing, etc., all of these are completely irrelevant to the power-minded except to the extent that they pretend to engage in same in order to fool and deceive people.

The prime example here is the continued thinking of some prolifers that if only they can come up with a better argument, if only they can find better proof of the living humanity of the unborn, then pro-aborts will be compelled to see that they are wrong. In fact, the pro-aborts do not care about the truth, they do not care about reasoning or logic. They care about POWER, the unilateral and arbitrary power of one to do whatever the hell she wants.

Allie, apart from the fact that (as the prof. sort of points out) your comparison skews a little to apples/oranges, a venn diagram of people who support compulsory ultrasounds prior to abortion and people who oppose ObamaCare would not contain quite so much overlap as you apparently suppose.

This discussion of liberty in the context of a coercive government program reminds me of an op-ed written years ago by Tom Hayden in which he extolled the Cuban government's conceptions of freedom as being more advanced than ours. He had some system worked out where American freedoms were to be seen as kind of primitive, like, what good is free speech if you're hungry? What good is freedom of association if you're sick. In Cuba, they had more highly evolved freedoms, like freedom from fear of illness, freedom from fear of poverty, etc. Of course it was crazy. But I do think there are lots of people out there on the left who think the kinds of freedom discussed by the state's attorney at SCOTUS this week are trivial, primitive, atavistic freedoms to which some of us cling bitterly, afraid to embrace the better freedoms we could have if we weren't so blinkered and backwards.

"There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

He seems confused about the difference between "freedom" and "free of charge."

Informed consent is sine qua non to liberty. For a choice to be freely made, it must necessarily be an informed choice, not a decision made in ignorance or, worse yet, misinformation. The choice must be made knowingly, intelligently, consciously, and voluntarily, with a full understanding of the nature and consequences of the choice and the action to be taken.

Drugs are taken off the market all the time. You can't just pull the plug on someone on a respirator temporarily. A doctor taking a breast biopsy before doing a mammogram or ultrasound would likely have his licensed pulled. Nadia Sulemon's doctor lost his medical license.

What if a legislature passed a law saying the person taking a feeding tube out of someone must first do a brain scan? Is that too intrusive?

I don't like the ultrasound laws particularly, but let's not pretend that is the one intrusion that exists.

But when people undergo medical procedures, informed consent is part of choice. You need to know what is going to be done to you. Arguably, a free ultrasound could be considered a valid regulation like that, but if what it really is is a way to make it harder for you to do what you've chosen, then it's a rights violation.

3/30/12 12:54 PM-------------------------------

Is violating someone's rights liberty? Althouse has spelled it out , if it makes it harder for the woman to obtain a legal medical procedure, it's a rights violation. How much clearer could that be?

"Communist society ... regulates the general production and thus makes it possible for me to do one thing today and another tomorrow, to hunt in the morning, fish in the afternoon, rear cattle in the evening, criticize after dinner, as the spirit moves me"

In other words we are only truly free when all our wants and needs are provided for and we can all live like aristocrats.

In the Soviet Union, after Stalin died, no one branch of the government "had complete jurisdiction over public life." Internal security was shared by the KGB and the Army and the local party committees, criminal justice was shared between the judiciary and the KGB and the local party, etc. Even decisions like "shall an apartment building be built at this site" or "shall we shoot down this unarmed civilian airliner with an American congressman on board" were shared between a half-dozen bureaucracies.

So by the Solicitor General's definition, the Soviet union from 1955-1990 was much freer than our country today.

Is violating someone's rights liberty? Althouse has spelled it out , if it makes it harder for the woman to obtain a legal medical procedure, it's a rights violation. How much clearer could that be?

It could be a lot clearer if we knew the reason Virginia passed the law. Yes, Professor Althouse has spelled it out, and she spelled it differently than you. She said:

...but if what it really is is a way to make it harder for you to do what you've chosen, then it's a rights violation.

In other words, if the reason they passed it was to make it harder procedurally, then that is a rights violation. If they passed it because they believed that showing an expectant mother their unborn child's beating heart would make them want to keep the baby, then it could be considered informed consent.

Ignorance is Bliss, your argument fails. You would have to prove that the woman who is about to undergo an abortion had no knowledge that there was a living human with a beating heart inside her womb.

But you don't have to prove a lack of knowledge specifically about a heartbeat. You could base it on the women lacking knowledge about the specific amount of development of their baby at that time.

Note that I'm not approving of the law. I'm just trying to show that the constitutional issue is not as clear-cut as you seem to think. Maybe that's what happens when your constitutional right is not actually in the constitution.

Allie, the ultrasound bills are a foolish response to a foolish federal legal error.

The latter was among the most divisive SCOTUS decisions in American history, and turned the question into a chronic nationwide battle, rather than permitting each state to develop its own response over time.

But the decision settled nothing, and the fight rages on, now in the form of endless new laws and lawsuits and name-calling.

The left thought that declaring victory in the matter of at-will fetus-killing settled the issue, but it merely exacerbated things.

An abortion is probably the only similar procedure where a sonogram or similar is not done prior to the alteration of internal tissue.

Why should just this procedure be initiated so carelessly?

Of course it violates some right, but if I told my doctor I didn't want the sonogram and just wanted him to plunge in with a biopsy needle or start cutting, they would refuse. I'd have my rights, but no procedure. Even if we both agreed, he couldn't proceed - because he was not allowed by his insurance or the hospital policy.

The difference here is it's proposed as a law - same effect different reason. Now, if the purpose is to inform the patient before they do something, then that is still done all the time. By law, you have to learn all kinds of things to get what you want: drivers license, college degree, a gun permit, even some medications and procedures require proof and a signature that you have been informed of things.

The only difference I see is that some people just don't like who's telling them to do it and why. I understand that, but welcome to the club. Regardless of how it's handled in our modern society the truth is that this is a serious thing and the requirement is minimal intrusion once you are considering an abortion.

I would not require it in the first 45 days of pregnancy though. I don't consider the fetus human at that point, and there is nothing to see anyway.

This would also encourage women to do it early, which I greatly prefer.

Ignorance is Bliss, I'm basing my Assertion that she agrees with me on this matter based on what she herself wrote here in this thread.

Ann Althouse said;

"What of the intrusive requirements of an ultrasound before an abortion, is is right that government get inbetween a woman and her doctor? Want government out of your health care choices?"

If that's addressed to me, you should know that I have not blogged any approval of those laws.

But when people undergo medical procedures, informed consent is part of choice. You need to know what is going to be done to you. Arguably, a free ultrasound could be considered a valid regulation like that, but if what it really is is a way to make it harder for you to do what you've chosen, then it's a rights violation.

3/30/12 12:54 PM---------------------------

No divination required. She made it clear and if I'm wrong, she may decide to come back and clarify.

AllieOop said... Cubanbob, no of course not. It's not your or the governments business forcing a woman to view an ultrasound before a legal medical procedure. This is an example of government getting in between a person and their doctor in a medical decision.

It couldn't get any clearer. As I said, you can't have it both ways. Slapping the liberty label on health care decisions that are only morally acceptable to some is not liberty.

Liberty a la carte ?

3/30/12 12:42 PM

So is an execution by lethal injection and like abortion somebody dies and a legal execution requires witnesses to that fact.

Pretty sanctimonious on your part about getting between a woman and her doctor when the ACA precisely does that and strips you of your liberty to spend your money as you see fit, or against your religious beliefs, Requiems you to further forcibly support others, and you talk about liberty a la carte?

Bagoh, I agree that abortions are the taking of a human life and should not be entered into lightly. To assume that a woman seeking an abortion does not fully understand the fact that she is carrying a human life is not a good argument.

She absolutely realizes this, hence why else would she seek an abortion, for removal of a tumor or growth of some sort? She does not want the child. Roe v Wade made it legal for her to seek an abortion.

She is exercising her rights, this is liberty. Liberty isn't always beautiful, is it?

R. Chatt said...If liberty is being free of disease, ultimately the discussion should be on what can be done to encourage healthy living, not how to mandate health insurance.

When a cure for death is found then you might have a point. In the interim it's just silly.

By the way there is no constitutional mandate that someone should mandated to subsidize someone Else's health costs. As the supreme court ruled 50 years ago regarding social security, it isn't a right, it's just a welfare program that congress can terminate at any time it chooses.

AllieOop said...Bagoh, I agree that abortions are the taking of a human life and should not be entered into lightly. To assume that a woman seeking an abortion does not fully understand the fact that she is carrying a human life is not a good argument.

The difference is between ordering someone to die from a distance and having to watching them die.

No divination required. She made it clear and if I'm wrong, she may decide to come back and clarify.

The Professor may well agree with you. However, note that what she made clear contained a conditional ..if what it really is is a way to make it harder for you to do what you've chosen... and she never states whether she believes that condition is being met. That condition is not met just because the law makes it harder, it is only met if that is really the point of the law.

And yes, she may decide to come back and clarify if you are wrong, or she may not. A lack of response from the Professor is not an indication that she agrees with you.

"She does not want the child. Roe v Wade made it legal for her to seek an abortion."

And removing a tumor that I definitely don't want and nobody else wants me to have STILL requires that I be informed of things and that imaging be done prior, even if neither the doctor or I need it. Some women know exactly what they are doing, but many, and I would bet most, especially the younger ones, don't know exactly what is being destroyed. It should never be easy out of ignorance.

Abortion is legal, and I want it so, but this imaging is nothing special, except that the politics make some people unhappy. Responsibility is not always pretty or easy either.

You're still not getting it. You are arguing that lynching your slave is a violation of your property rights. Dressing it up in "liberty" garments just makes it look ridiculous. You might as well wrap it in an American flag.

Fen, slavery was abolished, haven't you heard? Arguing that abortion can be compared to the beating of your slave is, weak.

No, strawmen are weak. I didn't compare abortion to beating your slave. I compared it to property rights. You lose points for acting in bad faith.

Which really makes me suspect your "but I'm against abortion and ACA" quilifiers. Odds are you're just a Concern Troll.

Are you forgetting that the woman seeking an abortion is also a live human seeking a legal medical procedure.

If you're going to argue for Liberty, you can't champion the woman's liberty while completely ignoring the child's liberty. You must support both.

As I said earlier up thread, hate the law? Work to have it overturned.

Earlier, you argued in defense of Liberty, claiming that the government shouldn't get between a woman and her doctor. But here you are now, arguing that the Government grants Liberty. You would discount the liberty of the child because the Government says its legal to do so?

This kind of contradiction is why I don't think you are legit. Your arguments doesn't follow the intellectual path taken by somone genuinely concerned with Liberty. I think you're just cynically using it as a prop to support abortion.

How about the liberty and freedom to not have the combox for a post on Kennedy's idea of liberty be hijacked by someone so obsessed with the right to kill what she admits is human life?

How about the liberty and freedom not to have to be subjected to the irrationalities of the "personally opposed but . . ." argument, where one says, "yes, it is an innocent human life, but its her right and choice to kill that life"?

Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child.

But who talks that way? Where is the pro-lifer who says that pregnancy is freedom? It's not freedom. It's the opposite of freedom.

When you have a baby, you have duties. Your old life is over. Now you're living for another person. You have duties to another person. You're bound to another person.

You can walk away from a baby. You can abandon her to die. You can hire a physician to rip her out of your uterus. You can free yourself of your obligations and deny any responsibility.

That's freedom. But it's an ugly, mean freedom. It's like those feminists who abandon their kids and run off to find themselves.

It's the freedom to be a shit to other people.

But sure, abortion is a liberty. So what? All crimes are liberties if the Supreme Court says they are. Rape is a liberty. Drunk driving is a liberty. Manslaughter is a liberty. We can go through the list. Kidnapping Africans used to be a liberty, too, remember?

I'm not aware of any pro-lifers who feel obligated to spin the criminalizatin of abortion as a liberty. No, sorry, it's the pro-choice side that says up is down and black is white.

For instance, feminists engage in Orwellian rhetoric when they insist that abortion is nothing but a woman's liberty. "It's my body, it's my choice." In that philosophy, where is the baby? Where is the father? They don't exist. Feminism negates their existence and their importance.

Feminists fight tooth and nail to keep sonograms from women. Yes, even photographs of a baby are verbotten. Why? Because the baby's reality might upset our ideology.

When a pregnant woman gets the shit kicked out of her in the street, feminism can't speak of any injuries to a baby.

Whenever I try to explain my objection to Obamacare to less politically engaged friends, I come back to my basic view of the Constitution and the Bill of Rights. Nothing in those documents requires my fellow citizens to relinquish their property rights in order for me to exercise my rights. Single payer health care as in Canada and Britain makes healthcare providers slaves of the state. Obamacare might be even worse. It requires my children and grandchildren to pay for others. That is simply wrong. Very wrong.

If informing a mother about the development of her child before aborting said child is intrusive, then so is the gov't forcing my credit card companies to keep sending me notices about interest rates, late fees, etc.

The argument against the mandate as threatening liberty is either pure politics, having nothing whatsoever to do with Americans' actual liberties ... or I've somehow missed the legions of earnest screeds from conservatives railing against the brute fascism of mandatory auto insurance.

The alchemy by which a law requiring mandatory insurance becomes totalitarian as soon as it applies to one's own life & limb is quite occult indeed, as no logical means can be found to make it look any less ridiculous ... although many with a vested interest or an axe to grind will surely try their best to make it appear otherwise.

Seeing Scalia seriously entertain the ludicrous broccoli analogy - or yearn to strike down a "Cornhusker Kickback" provision that isn't even in the ACA - reminds one that this is the same august body that gave Americans the sterling monument to venality that is Citizens United. Whether they will do the right thing & cite the abundance of crystal-clear precedent in commerce law that favors the ACA's mandate is anyone's guess.

Also, as regards something as mundane as mandatory healthcare premiums, please do kindly spare us the "freedom is slavery" schtick: liberty can only be defended via compulsion against those who would abolish it, when they will not listen to reason (which is the norm). You can give a slave all the choices in the world save freedom, or give a free person no choice at all; neither condition need alter the subject's state of affairs.

The argument against the mandate as threatening liberty is either pure politics, having nothing whatsoever to do with Americans' actual liberties ... or I've somehow missed the legions of earnest screeds from conservatives railing against the brute fascism of mandatory auto insurance.

The joys of federalism. I live in a state that does not require auto insurance, so I've no need to screed. Similarly, I've never complained about Romneycare, that is a problem for the people of Mass.

But if my state did require auto insurance, and required it to cover everything from oil changes to wiper blades, then yes, I'd be complaining loudly. If they violated our state constitution to do it then I'd be even more pissed.

Seeing Scalia seriously entertain the ludicrous broccoli analogy - or yearn to strike down a "Cornhusker Kickback" provision that isn't even in the ACA - reminds one that this is the same august body that gave Americans the sterling monument to venality that is Citizens United. Whether they will do the right thing & cite the abundance of crystal-clear precedent in commerce law that favors the ACA's mandate is anyone's guess.

What exactly is ludicrous about the broccoli analogy?

The Professor already explained the cornhusker kickback in an earlier thread, so you look like a fool on that point.

Do you have an actual constitutional argument against Citizen's United, or is the fact that you don't like it all that matters?

There is no precedent directly on point. Personally, I think that some of the precedents are wrong, for example Wickard and Raich. I would love to see them overturned.

Don't tell me that someone is STILL pushing the auto insurance thing, where people who do not own autos are not obligated to buy auto insurance -- a patently failed argument that was tried and swatted away three years ago when ObamaCare was being debated.

"Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child."

Well..if "liberty preserving" government programs are structured a la Ponzi and there is a declining birth rate undermining the sustainability of those programs, perhaps mandatory child bearing serves liberty.

@Rchatt"If people choose to do high risk activities and their health is affected they can be mandated to pay their own way."Ah..they are pursuing this in Britain. but there are a growing number of medications that significantly reduce the instance various diseases. In the context of the individual mandate discussion and your preventative focus, perhaps the greater good demands that you take a selection of drugs with various side effects. Ah well..for the team.

The discussion of ultrasounds reminds me of the harsh video I was forced to watch when pursuing radial keratotomy (caveman lasik).Gave me pause. But I never considered it an intrusion into my liberty. And I was nowhere near the territory of Ann's Kennedy discussion: “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

The solicitor general didn't have an answer to this question, but I'm still curious. If you are a liberal and thus favor Obama's health care bill what criterion do you use to decide when the government is allowed to force you to buy something and when it is not?